Energy – Focus on Regulationhttps://www.hlregulation.com
Thu, 23 May 2019 23:42:36 +0000en-UShourly1https://wordpress.org/?v=4.9.10Parent company liability and human rights – new claims against mining company filed in the English courtshttps://www.hlregulation.com/2018/05/14/parent-company-liability-and-human-rights-new-claims-against-mining-company-filed-in-the-english-courts/
Mon, 14 May 2018 14:10:48 +0000https://www.hlregulation.com/?p=10526On 16 April, proceedings were issued in the English courts against Gemfields Limited, a London-based mining company, in relation to allegations of human rights abuses in connection with the activities of its subsidiary in the vicinity of the Montepuez ruby mine in Mozambique. This case comes hot on the heels of the English Court of

]]>On 16 April, proceedings were issued in the English courts against Gemfields Limited, a London-based mining company, in relation to allegations of human rights abuses in connection with the activities of its subsidiary in the vicinity of the Montepuez ruby mine in Mozambique.

This case comes hot on the heels of the English Court of Appeal’s two recent rulings on parent company liability and jurisdiction in Lungowe and others v. Vedanta and KCM [2017] EWCA (Civ) 1528 (October 2017) and Okpabi and others v Royal Dutch Shell Plc and another [2018] EWCA Civ 191 (Okpabi) (February 2018). See our earlier blog posts for our more detailed analysis of these two cases: Lungowe v Vedanta and Okpabi v Shell.

We are also awaiting the Court of Appeal’s judgment in the case of AAA and others v Unilever plc and another, which was heard on appeal from the High Court last week. See our commentary on the High court decision here.

The claims against Gemfields

In this latest case, the claimants, over 100 artisanal miners and members of the local communities around the Montepuez mine in Mozambique, allege that Gemfields’ subsidiary, Montepuez Ruby Mining Limitada (MRM), is responsible for a series of human rights abuses they have suffered since the mine’s establishment in June 2011.

The claims include that the claimants have been shot, beaten, unlawfully detained, subject to sexual abuse, humiliated and forced to carry out menial labour on behalf of MRM. The claimants also include four parents bringing claims on behalf of their sons who, they allege, were shot dead by the mine’s security forces. The proceedings are being brought in London against MRM’s parent company, Gemfields, who the claimants argue is responsible for MRM and the local security forces’ actions.

Gemfields strongly denies the allegations, including on the basis that violence occurred both before and after their arrival in the area. They say the violence is often between competing groups of artisanal miners; and where MRM’s security forces have become involved, to protect employees or the local community, their actions have always been appropriate. Gemfields also points to the fact that MRM provides training pursuant to the Voluntary Principles on Security and Human Rights to both employees and service providers; as well as voluntarily offering the training to Mozambican police and government forces.

Parent company liability

The claimants have opted to issue the proceedings in England against MRM’s UK-based parent company Gemfields (which has a 75 per cent shareholding in MRM).

The claimants point to Gemfields’ “mine & market strategy” as evidence of Gemfields’ responsibility for the mine. The policy, adopted by Gemfields in 2010, focuses on ensuring its products are fully traceable from when they are mined to when they are sold at market. They argue that this demonstrates that Gemfields remains actively involved in the running of the Montepuez ruby mine, as well as all other mines, and therefore can be held responsible for operational impacts at the mine.

It remains to be seen what the court will make of the “mine & market strategy”, and whether this is capable of establishing a duty of care, and thus potential liability, for Gemfields in relation to the actions of its subsidiary in Mozambique. The Court’s judgment in Okpabi may be telling – that where a parent company has taken direct responsibility for devising a material policy, the adequacy of which is the subject of the claim, this will be a factor material to the existence of a duty of care. However, all three judges in the Shell case agreed that the mere existence of such policies does not create a duty of care. Simon LJ held that:

“The issuing of mandatory policies plainly cannot mean that a parent has taken control of the operations of a subsidiary (and, necessarily, every subsidiary) such as to give rise to a duty of care in favour of any person or class of persons affected by the policies.”

The Court in Shell distinguished between a parent company which takes steps to ensure that there are proper controls in place by establishing an overall system of mandatory policies, processes and uniform practices on the one hand and a parent company which actually seeks to exercise control on the other. Only in the case of the latter might a duty of care arise. The question of whether Gemfields’ ‘mine and market strategy’ will be deemed sufficient to establish a duty of care will no doubt be a key focus of the decision.

Conclusion

The case will be watched closely by the mining community at a time when the industry is responding to increased pressure to improve transparency in the supply chain and human rights protection around mining activities.

Watch out for future posts reporting on developments in the case.

Julianne Hughes-Jennett is a Partner, Peter Hood is a consultant, Alison Berthet is an associate and Scott Prior is a trainee in Hogan Lovells’ Business and Human Rights Group.

]]>Department of Energy Proposes Major Changes to Wholesale Power Market Ruleshttps://www.hlregulation.com/2017/09/30/department-of-energy-proposes-major-changes-to-wholesale-power-market-rules/
Sun, 01 Oct 2017 03:19:56 +0000http://www.hlregulation.com/?p=10055On Friday, September 29, Secretary Perry initiated one of the first concrete policy actions of the Trump administration to implement that approach, by submitted a rulemaking proposal to the Federal Energy Regulatory Commission (FERC or Commission) on grid resiliency.

]]>During his confirmation hearing to be Secretary of Energy, Rick Perry repeatedly expressed support for an “all of the above” approach to energy development and use. On Friday, September 29, he initiated one of the first concrete policy actions of the Trump administration to implement that approach, by submitting a rulemaking proposal to the Federal Energy Regulatory Commission (FERC or Commission) on grid resiliency. The U.S. Department of Energy (DOE) filing directs FERC to act on a proposed rule that would require FERC-approved organized power markets (independent system operators (ISOs) and regional transmission organizations (RTOs)) to develop and implement market rules that “accurately” price the production of certain electric generation resources. The rule would benefit generation facilities that are:

Physically located within such RTOs and ISOs;

Able to provide “essential energy and ancillary reliability services”;

Have a 90-day fuel supply on site;

Compliant with all applicable environmental laws and regulations; and

Not subject to state or local cost-of-service rate regulation.

The on-site fuel supply requirement essentially limits the rule to coal and nuclear plants (although some dual-fuel gas-fired facilities may also qualify).

The core of the proposed regulatory language is one paragraph and reads as follows:

Each Commission-approved independent system operator or regional transmission organization shall establish a tariff that provides a just and reasonable rate for the (A) purchase of electric energy from an eligible reliability and resiliency resource and (B) recovery of costs and a return on equity for such resource dispatched during grid operations. The just and reasonable rate shall include pricing to ensure that each eligible resource is fully compensated for the benefits and services it provides to grid operations, including reliability, resiliency, and on-site fuel assurance, and that each eligible resource recovers its fully allocated costs and a fair return on equity.

The DOE submission explains as a basis for its proposal that “[d]istorted price signals in the Commission-approved organized markets have resulted in under-valuation of grid reliability and resiliency benefits provided by traditional baseload resources, such as coal and nuclear. The rule will ensure that each eligible reliability and resiliency resource will recover its fully allocated costs and thereby continue to provide the energy security on which our nation relies.”

The submission further argues that “[t]here is a growing recognition that Commission-approved organized markets do not necessarily pay generators for all the attributes that they provide to the grid, including resiliency.” It explains that ensuring such resources are able to fully recover their costs is necessary to limit the planned retirements of large numbers of baseload generating facilities.

Secretary Perry proposes this new rule “pursuant to Section 403 of the Department of Energy Organization Act [the Act].” He “directs” (and later on uses the word “require[s]”) FERC to issue a final action on the proposed rule within 60 days of its publication in the Federal Register (with comments due in 45 days), or to simply issue the proposed rule as an interim final rule, subject to modification after comments are received. In either case, the rule would then be effective within 30 days after publication, with compliance filings by the affected ISOs and RTOs due 15 days thereafter.

Section 403 of the Act (42 U.S.C. § 7173) gives the Secretary of Energy authority to propose rules for matters under FERC’s Federal Power Act (FPA) jurisdiction. However, at the same time, the Act gives FERC “exclusive jurisdiction” to “consider and take final action on” the Secretary’s proposal, and, under the FPA, FERC cannot approve any wholesale electricity tariffs unless it finds that the tariff is just and reasonable and not unduly discriminatory. FERC is therefore not required to adopt the DOE proposal as submitted and will be able to modify the rule as necessary to meet FPA requirements. It may even potentially reject the rule after consideration of public comments.

The DOE’s timing requirements are extremely tight and present a significant challenge to FERC and the affected market participants. Many important implementation details are not addressed in the proposal and will need to be resolved before the rule can go into effect. The proposed rule does not address the mechanism through which the generators are to be compensated (i.e., would it be through a surcharge outside of the normal market or by adjusting market prices to which the generators would otherwise be entitled or through some other mechanism).

No matter how such compensation is implemented, it will have significant impacts on the markets and other market participants. These markets currently pay generators based on bid-based market clearing prices. Some of the markets also have capacity auction or procurement mechanisms that enable generators to recover a portion of their fixed costs. Modifying these markets to incorporate cost-based pricing or payments envisioned under the proposed rule, while retaining the bid-based and auction pricing mechanisms for all other generation resources, will involve major restructuring changes to every ISO and RTO market.

The Act requires FERC to proceed “in an expeditious manner in accordance with such reasonable time limits as may be set by the Secretary.” Given the significant scope of DOE’s proposal, FERC may conclude that the DOE-mandated timeline is simply not reasonable. However, as an initial matter, FERC can be expected to attempt to meet the DOE deadlines.

]]>EPA to Reconsider Final Determination on Mid-term Evaluation of GHG Emission Standards for Light-Duty Vehicleshttps://www.hlregulation.com/2017/08/23/epa-to-reconsider-final-determination-on-mid-term-evaluation-of-ghg-emission-standards-for-light-duty-vehicles/
Wed, 23 Aug 2017 12:53:39 +0000http://www.hlregulation.com/?p=9936EPA and NHTSA are currently conducting a Mid-term Evaluation as part of the 2012 GHG emission standards established for MY 2017-2025 passenger cars and trucks. Pursuant to the 2012 rulemaking, EPA committed to conduct a Mid-term Evaluation of the GHG standards for MY 2022-2025 light-duty vehicles. As part of the Mid-term Evaluation, EPA issued for

]]>EPA and NHTSA are currently conducting a Mid-term Evaluation as part of the 2012 GHG emission standards established for MY 2017-2025 passenger cars and trucks. Pursuant to the 2012 rulemaking, EPA committed to conduct a Mid-term Evaluation of the GHG standards for MY 2022-2025 light-duty vehicles. As part of the Mid-term Evaluation, EPA issued for public comment a joint Draft Technical Assessment Report in July 2016 and a Proposed Determination in November 2016. EPA’s subsequent January 2017 Mid-term Evaluation Final Determination (“Final Determination”) recommended no change to the GHG standards for light duty vehicles for MY2022-2025. In March 2017, EPA announced its intention to reconsider this Final Determination and to coordinate its reconsideration with NHTSA’s review. EPA’s Mid-term Evaluation and new Final Determination must be completed by April 1, 2018.

At the same time, NHTSA also has issued a Notice of Intent to Prepare an Environmental Impact Statement (EIS) for MY 2022–2025 Corporate Average Fuel Economy Standards and Request for Scoping Comments on its Mid-term Evaluation, 82 Fed. Reg. 34,740 (July 26, 2017). In an upcoming proposed rulemaking, NHTSA intends to propose separate attribute based standards for passenger cars and light trucks for MYs 2022–2025, and also may evaluate the MY 2021 standards it finalized in 2012 to ensure they remain ‘‘maximum feasible.’’ As with any CAFE rulemaking, NHTSA will also consider other programmatic aspects in addition to stringency (such as flexibilities and vehicle classification) that may affect model years prior to MY 2022-2025. As part of its scoping process NHTSA seeks public comment on the range of alternatives under consideration, on the impacts to be considered, and on the most important matters for in-depth analysis in the EIS. Scoping comments are due to NHTSA by August 25, 2017.

These recent notices indicate EPA and NHTSA’s intent to issue a new Final Determination regarding the appropriateness of the MY 2022–2025 GHG standards no later than April 1, 2018, in consultation and coordination as part of a national harmonized program, and well before April 1, 2020, when NHTSA is statutorily required to issue a final rule for MY 2022 CAFE standards.

]]>On Friday, February 3, the U.S. Nuclear Regulatory Commission (NRC) published in the Federal Register draft “Guidance for Developing Principal Design Criteria for Non-Light Water Reactors.” This draft new regulatory guide (identified as DG-1330) helps explain how the NRC’s “general design criteria” for traditional light-water nuclear power plants could be applied to non-light water (a.k.a. “advanced”) nuclear reactor design submissions, enabling applicants to develop principal design criteria as part of their regulatory filings. Comments are due on the guidance by April 4, 2017.

The draft regulatory guide is a significant publication of over a 100 pages. It provides a background of the NRC’s policy on advanced nuclear reactors, the role of general design criteria in reactor licensing, and joint NRC-U.S. Department of Energy (DOE) efforts to tailor the agency’s general design criteria to advanced reactors. The general design criteria for traditional nuclear power plants are found at Appendix A to 10 C.F.R. Part 50, the chapter of the Code of Federal Regulations that contains the NRC’s primary regulations on nuclear power plant design.

But most interesting are the three appendices, which propose (A) technology-neutral design criteria for advanced reactors generally, (B) technology-specific design criteria for sodium-cooled fast reactors (SFRs), and (C) technology-specific design criteria for modular high temperature gas-cooled reactors (mHTGRs). The appendices contain not only the design criteria, but the “NRC Rationale” explaining why/how they were adapted from the general design criteria. In addition, pages 13 to 20 of the draft guide compare the three design criteria to the current set tailored to light-water reactors.

This is an important document that deserves close attention by the advanced reactor community. It provides one of the first detailed insights into how the NRC views advanced reactors, how far it is willing to step away from the general design criteria framework, and what it finds of importance from a safety perspective for advanced reactors.

Notably, the basic approach taken by the NRC appears to mimic what the DOE suggested in its 2014 report, “Guidance for Developing Principal Design Criteria for Advanced (Non-Light Water) Reactors.” There, the DOE likewise “proposed a set of advanced reactor design criteria” to serve in lieu of the general design criteria, but also proposed separate design criteria for SFRs and mHTGRs. As explained by the NRC here, the DOE’s rationale was “that the safety objectives for some of the current [general design criteria] did not address design features specific to SFR and mHTGR technologies (e.g., sodium or helium coolant, passive heat removal systems, etc.). Additional design criteria were developed to address unique features of those designs.”

It should be mentioned that this guide is just that—guidance. As made clear in the draft guide, the proposed design criteria “are intended to provide stakeholders with insight into the staff’s views on how the [general design criteria] could be interpreted to address non-LWR design features,” but they are not binding. It is still on the applicant to develop principal design criteria for her application, “considering public safety matters and fundamental concepts, such as defense in depth, in the design of their specific facility and for identifying and satisfying necessary safety requirements.”

Moreover, the regulatory framework for advanced reactors is still in flux. As noted in a prior blog entry, this January legislation was introduced in Congress “to spur technology development related to advanced reactors.” Recently, on January 23, separate legislation “to provide regulatory certainty for the development of advanced nuclear energy technologies” passed the House of Representatives. This latter bill, entitled the “Advanced Nuclear Technology Development Act of 2017” is related to a prior bill that passed the House of Representatives in 2016, and was examined by our team here.

The advanced reactor industry is certainly picking up steam. Terrestrial Energy earlier this month informed the NRC that it plans to file a license application for its molten salt reactor in 2019. LeadCold around the same time announced a $200 million deal to develop its lead-cooled reactor. We hope the NRC’s actions here evidence continued support for the advanced reactor community, and a willingness to recognize the unique safety and security benefits these new designs bring.

]]>January has already proven an eventful month for developers of small modular reactors (SMRs) and non-light water (i.e., advanced) reactors.

The U.S. Nuclear Regulatory Commission (NRC) is finally starting to see significant movement in regards to SMRs. NuScale’s January 12 submission of its design certification application for a 50 MWe SMR design garnered significant news attention. Also of note, on the same day the Tennessee Valley Authority’s (TVA’s) early site permit application for a SMR power plant at Clinch River, Tennessee was docketed by the NRC.

For advanced nuclear reactors, earlier this month the Nuclear Energy Innovation Capabilities Act was introduced in the House and Senate to spur technology development related to advanced reactors. The companion bills, H.R.431 and S.97, were introduced by Representative Randy Weber and Senator Mike Crapo and have bipartisan support. Although the text is not publicly available yet, in a press release from the House Committee on Science, Space, and Technology, Randy Weber stated that “[t]his legislation requires the Department of Energy to prioritize its R&D infrastructure on capabilities that will enable the private sector to develop advanced reactor technologies.”

Separate legislation geared towards improving the regulatory framework for advanced reactors progressed in Congress in 2016, but has since been dormant during the political transition (a detailed entry discussing this legislation is available here). If one or both of these efforts is able to move forward this year, it could prove very helpful to the advanced reactor community.

For more on legislative developments related to SMRs and advanced nuclear reactors, please contact the authors.

]]>Review of NRC Final Vision Statement on Advanced Reactorshttps://www.hlregulation.com/2017/01/14/review-of-nrc-final-vision-statement-on-advanced-reactors/
Sun, 15 Jan 2017 01:13:23 +0000http://www.hlregulation.com/?p=9162In late December the staff of the U.S. Nuclear Regulatory Commission (NRC) issued an updated and seemingly final “NRC Vision and Strategy Statement” for non-light water (a.k.a. advanced) reactors (Final Vision Statement).

]]>In late December the staff of the U.S. Nuclear Regulatory Commission (NRC) issued an updated and seemingly final “NRC Vision and Strategy Statement” for non-light water (a.k.a. advanced) reactors (Final Vision Statement). We previously reviewed the Draft Vision Statement, as well as comments received on it from advanced reactor companies, in an October blog post. While much of the vision statement remains the same in the final version, in core areas there are significant departures from the draft.

As we discussed in the October post, the core aspects of the Draft Vision Statement were the creation of a “conceptual design assessment” (CDA) and staged standard design approval process for advanced reactors. In the Draft Vision Statement, these were found in Section 5, titled “Non-LWR Regulatory Review Options and Flexibilities.” This section also provided a helpful overview of the NRC regulatory process and ways it could be applied to advanced reactors. In the Final Vision Statement, this section has been completely removed. Also eliminated are the sample deployment timelines for advanced reactors under the 10 C.F.R. Part 50 and Part 52 processes, which were found in Section 6.

These changes may be the result of comments received on the Draft Vision Statement, also discussed in our October post. Commenters on the Draft Vision Statement, which included the Nuclear Energy Institute, Transatomic Power, and X-energy, generally criticized the NRC process as too slow. They instead proposed revised timetables that anticipated advanced reactors under construction in the 2020s. Certain commenters indicated that the NRC should be prepared to receive pre-application submissions in just a couple years from now, much earlier than estimated in the Draft Vision Statement. The commenters also challenged the CDA and staged review process, arguing that they must have meaningful results to be justified. Transatomic Power further recommended that the CDA concept be ditched.

The Final Vision Statement still advertises that a CDA and staged review process may be implemented for advanced reactors in the future, but now there is no formal discussion of what they may look like. The Final Vision Statement, as with the draft, only suggests that any such approaches will remain, at least initially, within the scope of the current regulatory environment: “Activities in both of these areas are initially expected to be within the scope of the current regulations, with possible development of a revised regulatory framework for non-LWRs in the long-term.”

In lieu of specific timelines, the Final Vision Statement now states more generally that “the NRC plans to achieve its strategic goal of readiness to effectively and efficiently review and regulate non-LWRs by not later than 2025,” in order to allow for construction “by the early 2030s.” It acknowledges that the advanced reactor community may wish to submit design applications and start construction “in the near-term”—i.e., earlier than the U.S. Department of Energy’s (DOE’s) goal of having two non-LWR designs reviewed and ready for construction in the early 2030s. But the Final Vision Statement does not address the issue in detail. Instead, it only states: “the NRC will work with vendors on design-specific licensing project plans and the NRC may accelerate specific readiness activities, as needed.” As in the Draft Vision Statement, the NRC states that it is capable of reviewing such applications earlier, but these “will not benefit from the efficiencies gained as the non-LWR vision and strategies are implemented.”

Additional changes were made in the Final Vision Statement, particularly in the Section 4 discussion of agency near-, mid-, and long-term strategies to enhance technical readiness. These changes focus the strategies a little more on identifying regulatory gaps as well as on improving readiness to review fuel fabrication and fuel cycle issues related to advanced reactors. These may have been in response to comments, discussed in our October post, that the Draft Vision Statement left out a sufficient discussion of fuel fabrication facilities. Nonetheless, the NRC strategies discussed in the Final Vision Statement remain at a very high level.

The Final Vision Statement appears to reflect that the NRC took in the criticisms to its draft CDA and staged review process for advanced reactors, but it leaves no clear replacement for the removed information. In addition, the Final Vision Statement reflects that the NRC is still sticking to the DOE timeline for development of advanced reactors, which envisions construction only in the early 2030s, although it leaves open the door for earlier action if applications do actually come in.

This timeline is likely to be disappointing to many advanced reactor companies who anticipate submitting applications to the NRC sooner than the DOE timetable expects. To the extent the advanced reactor community wants to seek earlier action from the NRC, it should continue to communicate with the agency about anticipated timelines for specific projects. More generally, the community can submit formal comments and letters, as well as participate in NRC-sponsored events, such as the March 2017 NRC Regulatory Information Conference, and the April 2017 DOE-NRC Advanced Reactor Workshop.

For more information about the NRC Final Vision Statement on advanced reactors, or about advanced reactor and nuclear power licensing in general, please feel free to contact the authors.

]]>NRC Seeking to Improve Relationships with American Indian Tribeshttps://www.hlregulation.com/2016/12/23/nrc-seeking-to-improve-relationships-with-american-indian-tribes/
Fri, 23 Dec 2016 20:16:12 +0000http://www.hlregulation.com/?p=9114The relationship between the federal government and American Indian Tribes has taken on new relevance following protests of the Dakota Access Pipeline project. In this light, the U.S. Nuclear Regulatory Commission (NRC) has been prescient in moving forward in a number of areas to clarify and improve its relationship with American Indian communities.

]]>The relationship between the federal government and American Indian Tribes has taken on new relevance following protests of the Dakota Access Pipeline project. In this light, the U.S. Nuclear Regulatory Commission (NRC) has been prescient in moving forward in a number of areas to clarify and improve its relationship with American Indian communities.

In particular, this month the agency approved a final “Tribal Policy Statement” outlining the principles to guide the agency’s relationship with American Indian Tribes. The NRC also has developed a “Tribal Protocol Manual” with more specific steps to guide NRC staff interactions with American Indian Tribes. According to the NRC Commission, the principles at the core of the Tribal Policy Statement are:

The NRC Recognizes the Federal Trust Relationship With and Will Uphold its Trust Responsibility to Indian Tribes.

The NRC Recognizes and Is Committed to a Government-to-Government Relationship with Indian Tribes.

The NRC Will Conduct Outreach to Indian Tribes.

The NRC Will Engage in Timely Consultation.

The NRC Will Coordinate with Other Federal Agencies.

The NRC Will Encourage Participation by State-Recognized Tribes.

Interactions with American Indian Tribes have been at the forefront for the NRC in recent years, particularly in the context of uranium in situ leach recovery (ISR) operations. Uranium ISR facilities, although most often supported by the local communities, are also located near areas historically settled by American Indian Tribes, and many Tribes have been opposed to these projects. The NRC licensing process allows American Indian communities a chance to participate in licensing proceedings and argue their concerns before Atomic Safety & Licensing Boards (Licensing Boards), a feature unique in many ways to the NRC. American Indian communities have taken advantage of this and raised contentions in multiple uranium ISR proceedings.

Two uranium ISR decisions are of particular interest, and signal an effort by the NRC Commission to do more with regards to meeting the agency’s National Historic Preservation Act (NHPA) and National Environmental Protection Act (NEPA) requirements in regards to American Indian Tribes. The first Licensing Board decision, issued April 2015, concerned the licensing of the new South Dakota Dewey-Budock “Powertech” ISR facility. In this decision, the Licensing Board found the NRC staff’s consultation efforts with the Oglala Sioux Tribe, and its cultural resource review of site, both inadequate under the NHPA and NEPA. Of particular interest, the Powertech Licensing Board explained that the need for a meaningful cultural resource review under the NHPA is a similar but different requirement than the need to understand environmental impacts to cultural resources under NEPA. According to the Powertech Licensing Board, the NRC staff, albeit satisfying the NHPA in this regard, failed to meet NEPA’s requirements. The Commission today, on December 23, 2016, issued a critical order affirming key aspects of the Powertech decision.

The Commission’s affirmation of the Powertech decision likely bodes well for a separate Licensing Board decision, currently under review by the Commission, regarding the license renewal of the Crow Butte ISR facility in Nebraska. In this May 2016 decision, which involved the same intervenor, the Oglala Sioux Tribe, the Crow Butte Licensing Board found that the NRC staff’s consultation efforts satisfied the NHPA, but that the cultural resource review of the site failed to meet the needs of either the NHPA or NEPA. The Crow Butte Licensing Board here emphasized a need for those with expertise in Oglala Sioux cultural artifacts to play a role in the cultural resource review of the site.

For more information about the NRC’s Tribal Policy Statement or Tribal Protocol Manual, or recent litigation before the NRC involving American Indian Tribes, please feel free to contact the authors.

]]>Advanced Reactor Designer Terrestrial Energy Plans to File License Application with NRC in 2019https://www.hlregulation.com/2016/12/12/advanced-reactor-designer-terrestrial-energy-plans-to-file-license-application-with-nrc-in-2019/
Mon, 12 Dec 2016 17:14:06 +0000http://www.hlregulation.com/?p=9079The U.S. Nuclear Regulatory Commission (NRC) recently published a letter form Terrestrial Energy responding to the agency’s Regulatory Issue Summary (RIS) 2016-08. Terrestrial Energy in its letter stated that it plans to submit an application to the NRC for a design certification or a construction permit “no later than October 2019.”

Terrestrial Energy in its letter stated that it plans to submit an application to the NRC for a design certification or a construction permit “no later than October 2019.” Before filing either application, the agency will engage in pre-application consultations with the agency, including the submission of white papers and topical reports. The company indicated it will provide steps for moving forward these activities in 2017.

Terrestrial Energy is designing an “Integral Molten Salt Reactor” or IMSR. It describes its specific reactor design, the IMSR-400, as “a 400 MWth, small modular, high temperature, self-contained, pool-type, liquid fueled, thermal spectrum, graphite moderated, molten salt advanced reactor operating with a once through fuel cycle,” which “utilizes fluoride salts for both fueling (with low-enriched uranium) and for cooling.” It has applied to the U.S. Department of Energy for a loan guarantee for its reactor design. Terrestrial Energy is based in Canada, and has already engaged in pre-licensing reviews with the Canadian nuclear regulator. The entity to be applying for an NRC license is its US arm, Terrestrial Energy USA.

For more on Terrestrial Energy, the NRC, or the licensing process for advanced nuclear reactors in general, please contact the authors.

]]>Japan recently renewed interest in constructing advanced nuclear reactors domestically. According to S&P Global, Japan’s Ministry of Economy, Trade and Industry in a November 30 interview stated that it will create a working group to lead the effort to construct a demonstration fast neutron demonstration reactor in Japan.

This is complementary to a joint 2014 French-Japanese agreement to increase research into fast neutron reactors under the Advanced Sodium Technological Reactor for Industrial Demonstration, or ASTRID, program.

For more about international development activities into advanced nuclear reactors, please contact the authors.

]]>DOE and NRC Sign MOU to Benefit Advanced Reactorshttps://www.hlregulation.com/2016/11/23/doe-and-nrc-sign-mou-to-benefit-advanced-reactors/
Wed, 23 Nov 2016 20:54:22 +0000http://www.hlregulation.com/?p=9037As part of the DOE’s Gateway for Accelerated Innovation in Nuclear (“GAIN”) initiative, this month the DOE and NRC published a Memorandum of Understanding (MOU) that sets forth a process by which the two agencies will work together to help non-light water (“advanced”) nuclear reactors work through the nuclear licensing process.

]]>As part of the DOE’s Gateway for Accelerated Innovation in Nuclear (“GAIN”) initiative, this month the DOE and NRC published a Memorandum of Understanding (MOU) that sets forth a process by which the two agencies will work together to help non-light water (“advanced”) nuclear reactors work through the nuclear licensing process.

The MOU establishes contacts at each agency and a process by which the NRC will keep the DOE closely informed about its licensing process for advanced reactors, as well as any changes that occur. But perhaps most of interest, the MOU establishes a framework by which the DOE can answer basic regulatory questions that future advanced reactor applicants may have, concerning the “NRC’s regulatory requirements and activities.” Moreover, if DOE cannot answer the question, in certain cases it can e-mail the NRC and expect an answer back within two weeks. Questions that are asked and answered will be compiled on a DOE-hosted “FAQ” website.

It remains to be seen exactly how this program will shape out, and whether the DOE will be able to provide substantive assistance to advanced reactor licensees. But it represents an exciting development for today’s nuclear entrepreneurs, which are seeking a means by which to understand the complex regulatory landscape before then. It also continues a trend at DOE and in the federal government generally to engage in non-financial assistance—instead of simply giving cash awards to entrepreneurs, the government can leverage its resources, expertise, and connections to provide unique opportunities to entrepreneurs that money normally could not buy.

For more questions about advanced nuclear reactors, the GAIN initiative, or how the federal government can assist the development of nuclear power, please contact the authors.